State ex rel. Watson v. Hamilton Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 239.]

THE STATE EX REL. WATSON v. HAMILTON COUNTY BOARD OF ELECTIONS

ET AL.

[Cite as State ex rel. Watson v. Hamilton Cty. Bd. of Elections, 2000-Ohio-318.]

Mandamus to compel Hamilton County Board of Elections and its members to

certify relator as the Democratic candidate for Hamilton County Sheriff

on the March 7 primary election ballot and for a judgment declaring R.C.

311.01(B)(9) unconstitutional—Writ denied.

(No. 00-249—Submitted February 22, 2000—Decided February 28, 2000.)

IN MANDAMUS.

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{¶ 1} On January 3, 2000, relator, Brian Watson, filed an application with

the administrative judge of the Hamilton County Court of Common Pleas to be a

candidate for Sheriff of Hamilton County, Ohio. On January 6, the administrative

judge issued an entry in which he determined that Watson was an eligible candidate

for Hamilton County Sheriff. On January 7, Watson filed his declaration of

candidacy and nominating petition with respondent Hamilton County Board of

Elections to become a candidate for the Democratic Party nomination for Hamilton

County Sheriff on the March 7 primary election ballot.

{¶ 2} On January 12, Saundra Stehlin, a Democratic Party elector eligible

to vote in the March 7 primary election, filed a written protest against Watson’s

candidacy under R.C. 3513.05. In her protest, Stehlin claimed that Watson failed

to satisfy the sheriff-candidate eligibility requirements of R.C. 311.01(B)(9).

{¶ 3} On January 31, the board held a hearing on the protest at which

Watson conceded that he had never been a peace officer at the rank of corporal or

above during his employment with the Hamilton County Sheriff’s Office from

August 15, 1991 to December 3, 1997. During this period, he worked in the

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position of corrections officer with the intake division as well as the positions of

patrol clerk and patrol officer with the patrol division. There is no rank of corporal

in the intake division, but there is that rank in the patrol division, which includes

the following positions from lowest to highest rank: patrol clerk, patrol officer,

corporal, sergeant, lieutenant, captain, and sheriff. Watson failed the examination

required for promotion from patrol officer to corporal.

{¶ 4} Although Watson was never a peace officer at the rank of corporal or

above, he had the following supervisory experience at the designated ranks in the

five-year period before the R.C. 311.01(H)(1) qualification date of January 7, 2000:

January 12, 1995—April 8, 1996: Patrol Clerk. Watson was the senior

officer in charge of training during his shift.

January 1, 1998—March 1998 and August 1998—December 3, 1999:

Patrol Officer. Watson was the senior patrol officer on his shift. He directed other

officers in their work, including officers at crime and accident scenes.

December 1995, 1997, and 1998: Patrol Officer. Watson was assigned to

traffic duty at a local mall, where he supervised other patrol officers, corrections

officers, and auxiliary officers assigned to traffic posts.

{¶ 5} At the conclusion of the hearing, the four-member, bipartisan board

unanimously sustained the protest and declared Watson ineligible to be placed on

the March 7 primary election ballot. The board concluded that Watson lacked the

supervisory experience required by R.C. 311.01(B)(9)(a).

{¶ 6} On February 4, Watson filed this expedited election action for a writ

of mandamus to compel respondents, the board and its members, to certify him as

the Democratic candidate for Hamilton County Sheriff on the March 7 primary

election ballot, and a judgment declaring R.C. 311.01(B)(9) unconstitutional.

Watson also named the Secretary of State as a respondent. The parties filed

evidence and briefs pursuant to S.Ct.Prac.R. X(9).

{¶ 7} This cause is now before the court for a consideration of the merits.

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Timothy G. Mara, for relator.

Michael K. Allen, Hamilton County Prosecuting Attorney, and Gordon M.

Strauss, Assistant Prosecuting Attorney, for respondents Hamilton County Board

of Elections and its members.

Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., and David

S. Timms, Assistant Attorneys General, for respondent Secretary of State.

Pierce E. Cunningham and Thomas H. Stewart, urging denial of the writ for

amicus curiae, Saundra R. Stehlin.

__________________

Per Curiam.

{¶ 8} Watson asserts that he is entitled to a writ of mandamus to compel the

board to certify his candidacy for Hamilton County Sheriff on the March 7 primary

election ballot. We will set aside the board’s decision to uphold the protest and

issue the requested writ of mandamus if Watson establishes that the board’s

decision resulted from fraud, corruption, abuse of discretion, or clear disregard of

applicable law. State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections (1997), 80

Ohio St.3d 176, 179, 685 N.E.2d 502, 504-505.

{¶ 9} Watson initially claims that by upholding the protest, the board

abused its discretion and clearly disregarded R.C. 311.01(B), which provides:

“On and after January 1, 1988, except as otherwise provided in this section,

no person is eligible to be a candidate for sheriff and no person shall be elected or

appointed to the office of sheriff unless that person meets all of the following

requirements:

“***

“(9) The person meets at least one of the following conditions:

“(a) Has at least two years of supervisory experience as a peace officer at

the rank of corporal or above, or has been appointed pursuant to section 5503.01

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of the Revised Code and served at the rank of sergeant or above, in the five-year

period ending immediately prior to the qualification date;

“(b) Has completed satisfactorily at least two years of post-secondary

education or the equivalent in semester or quarter hours in a college or university

authorized to confer degrees by the Ohio board of regents or the comparable agency

of another state in which the college or university is located.” (Emphasis added.)

{¶ 10} A candidate to be sheriff can satisfy R.C. 311.01(B)(9) by any of the

following three alternatives: (1) have at least two years of supervisory experience

as a peace officer at the rank of corporal or above in the five-year period ending

immediately prior to the qualification date, (2) be appointed to the Highway Patrol

under R.C. 5503.01 and serve at the rank of sergeant or above in the five-year period

ending immediately prior to the qualification date, or (3) satisfactorily complete at

least two years of post-secondary education or the equivalent in a college or

university.

{¶ 11} Watson was never appointed to the Highway Patrol, and he never

obtained two years of qualifying post-secondary education. Consequently, in order

to comply with R.C. 311.01(B)(9), he had to have “at least two years of supervisory

experience as a peace officer at the rank of corporal or above” in the specified five-

year period. R.C. 311.01(B)(9)(a) and (H)(1).

{¶ 12} As we recently held, “[u]nder the language used in the pertinent

portion of R.C. 311.01(B)(9)(a), in order to be eligible to be a candidate for sheriff,

the person must, within the five-year period, have two years of supervisory

experience and that supervisory experience must have been earned when the person

served as a peace officer at the rank of corporal or above.” (Emphasis added.)

State ex rel. Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182,

184, 724 N.E.2d 771, 773.

{¶ 13} Here, like the prospective candidate for sheriff in Wolfe, Watson did

not earn the requisite supervisory experience in the five-year period. Watson

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admitted that he never served as a peace officer at the rank of corporal or above.

And Watson’s reliance on State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections

(1996), 75 Ohio St.3d 275, 662 N.E.2d 17, is misplaced because in that case, we

construed a substantially different previous version of R.C. 311.01(B)(9), which

did not require that the supervisory experience be earned as a peace officer at a

specified rank. Wolfe, 88 Ohio St.3d at 185-186, 724 N.E.2d at 774.

{¶ 14} Therefore, the board applied the unambiguous language of R.C.

311.01(B)(9) and neither abused its discretion nor clearly disregarded the statute by

invalidating Watson’s candidacy for sheriff. Watson failed to satisfy any of the

conditions in R.C. 311.01(B)(9).

{¶ 15} Watson alternatively claims that he is entitled to the requested

extraordinary relief in mandamus because the supervisory-experience requirement

of R.C. 311.01(B)(9)(a) is unconstitutional. More specifically, Watson claims that

his constitutional rights to due process and equal protection as well as his right of

free speech are violated because the supervisory-experience requirement serves no

legitimate public purpose.

{¶ 16} It is appropriate to consider the merits of Watson’s constitutional

claim in this mandamus action because an action for a declaratory judgment and

prohibitory injunction would not be sufficiently speedy in this expedited election

case. See State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio

St.3d 338, 342, 673 N.E.2d 1351, 1354 (“given the fact that relators are seeking to

have their petitions certified and names placed on the ballots for the upcoming

November election, the alternative remedy would not be adequate”); State ex rel.

Arnett v. Winemiller (1997), 80 Ohio St.3d 255, 259, 685 N.E.2d 1219, 1222; State

ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 129, 412

N.E.2d 393, 394 (“Under normal circumstances, an appellate process would last

well past the election”).

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{¶ 17} In evaluating Watson’s challenge to R.C. 311.01(B)(9), we are

guided by the precept that “[s]tatutes are presumed to be constitutional unless

shown beyond a reasonable doubt to violate a constitutional provision.” State ex

rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 535, 653

N.E.2d 349, 354; Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d

351, 352, 639 N.E.2d 31, 33. In other words, all reasonable doubts about the

constitutionality of R.C. 311.01(B)(9) must be resolved in its favor. Desenco, Inc.

v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323, 328.

{¶ 18} With these standards in mind, we next consider Watson’s First and

Fourteenth Amendment claims and related constitutional claims.

{¶ 19} R.C. 311.01(B) imposes certain qualifications upon persons who

seek to be candidates for sheriff. Legislative bodies like the General Assembly are

generally authorized to promulgate qualifications for those who seek public office.

State ex rel. Platz v. Mucci (1967), 10 Ohio St.2d 60, 61, 39 O.O.2d 48, 49, 225

N.E.2d 238, 240; State v. Bissantz (1988), 40 Ohio St.3d 112, 115-116, 532 N.E.2d

126, 130. Nevertheless, these restrictions on candidacy impair the right of electors

to vote for the candidate of their choice, which is protected by the Fourteenth

Amendment Due Process and Equal Protection Clauses, as well as the right of

persons to associate, which is protected by the First Amendment. See, generally, 3

Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure (3

Ed.1999) 708, Section 18.32.

{¶ 20} Therefore, in order to determine the constitutionality of R.C.

311.01(B)(9), we apply the modified balancing test adopted by the United States

Supreme Court in voting- and ballot-access cases. Purdy, 77 Ohio St.3d at 342,

673 N.E.2d at 1355; Burdick v. Takushi (1992), 504 U.S. 428, 433-434, 112 S.Ct.

2059, 2063-2064, 119 L.Ed.2d 245, 253-254. Under this test, in deciding whether

a state election law violates First and Fourteenth Amendment constitutional rights,

we must first weigh the character and magnitude of the burden the law imposes on

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those rights against the interests the state contends justify that burden, and consider

the extent to which the state’s interests necessitate the burden. Anderson v.

Celebrezze (1983), 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547, 558.

Regulations imposing severe burdens on voters’ and candidates’ rights must be

narrowly tailored to serve a compelling state interest, while lesser burdens require

less exacting review, and a state’s important regulatory interests usually justify

reasonable, nondiscriminatory restrictions. See Timmons v. Twin Cities Area New

Party (1997), 520 U.S. 351, 358-359, 117 S.Ct. 1364, 1370, 137 L.Ed.2d 589, 598.

Thus, contrary to Watson’s contentions, not every statutory restriction limiting the

field of candidates need advance a compelling state interest. Purdy, 77 Ohio St.3d

at 342-343, 673 N.E.2d at 1355.

{¶ 21} In first determining whether R.C. 311.01(B)(9) severely burdens

First and Fourteenth Amendment rights, we note that a law severely burdens voting

rights if it discriminates based on political content instead of neutral factors or if

there are few alternative means of access to the ballot. Citizens for Legislative

Choice v. Miller (C.A.6, 1998), 144 F.3d 916, 921.

{¶ 22} Here, the requirements of R.C. 311.01(B)(9), including the

requirement of two years of supervisory experience as a peace officer at the rank of

corporal or above, are content-neutral. In other words, these requirements do not

limit “political participation by an identifiable political group whose members share

a particular viewpoint, associational preference, or economic status.” Anderson,

460 U.S. at 792-793, 103 S.Ct. at 1572, 75 L.Ed.2d at 560. R.C. 311.01(B)(9) also

does not burden voters or candidates based on “ ‘the content of protected

expression, party affiliation, or inherently arbitrary factors such as race, religion, or

gender.’ ” Citizens for Legislative Choice, 144 F.3d at 922, quoting Bates v. Jones

(C.A.9, 1997), 131 F.3d 843, 847. Candidates for sheriff who do not meet the

requirements of R.C. 311.01(B)(9) are not an identifiable, historically protected

political group.

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{¶ 23} In addition, persons who seek to be a candidate for sheriff have

several alternatives. They may seek employment with the Highway Patrol and

appointment to the rank of sergeant or above. R.C. 311.01(B)(9)(a). They could

instead obtain two years of qualifying post-secondary education. R.C.

311.01(B)(9)(b). Or, finally, prospective candidates could garner the required

supervisory experience as a peace officer at the rank of corporal or above. R.C.

311.01(B)(9)(a). Watson did not satisfy any of these alternatives, and his attempt

to be promoted to corporal in the Hamilton County Sheriff’s Office failed because

he did not pass the required promotional examination. And even under these facts,

Watson was not precluded from seeking some other public office. See Citizens for

Legislative Choice, 144 F.3d at 922.

{¶ 24} Therefore, R.C. 311.01(B)(9) imposes an extremely limited burden

on candidates like Watson and does not unreasonably interfere with the right of

voters to have candidates of their choice placed on the ballot.

{¶ 25} In next evaluating the state’s interests, we observe that the sheriff is

the chief law enforcement officer in each county in the state, having duties that

include preserving the public peace. See State v. Rouse (1988), 53 Ohio App.3d

48, 52, 557 N.E.2d 1227, 1231; R.C. 311.07(A). The state has a manifestly

important interest in ensuring that the chief law enforcement officers in its eighty-

eight counties possess certain minimum qualifications. R.C. 311.01(B)(9)

reasonably furthers this interest by requiring either supervisory experience and the

demonstration of proficiency in law enforcement skills denoted by promotion to a

certain rank (R.C. 311.01[B][9][a]) or academic achievement through two years of

qualifying post-secondary education (R.C. 311.01[B][9][b]).

{¶ 26} Our conclusion comports with the recent ruling of a federal district

court that upheld the constitutionality of the R.C. 311.01(B)(8) requirement that all

candidates for sheriff obtain a basic peace-officer certificate of training from the

Ohio Peace Officer Training Council. Cicchino v. Luse (Feb. 1, 2000), S.D. Ohio,

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No. C-2-99-1174, unreported. In Cicchino, the court specifically found that “Ohio

has an important, if not compelling, interest in assuring that its top law enforcement

officers possess the minimum qualifications necessary to enforce and uphold the

laws.”

{¶ 27} Regarding Watson’s claim that the rank requirement

unconstitutionally delegates to various law enforcement offices the authority to

determine who qualifies to be a candidate for sheriff by varying standards to

promote officers to certain ranks, many of his assertions are not supported by sworn

testimony or other credible evidence. And even though there was evidence that

some divisions of the Hamilton County Sheriff’s Office do not have the rank of

corporal, there was also evidence that there were ranks above corporal in those

divisions, e.g., the rank of sergeant in the corrections division.

{¶ 28} As the court noted in Goforth v. Poythress (C.A.5, 1981), 638 F.2d

27, at 30, in upholding a comparable education requirement for sheriff’s candidates,

“[i]t is irrelevant that there may be some who have not obtained a high school

diploma or passed an equivalency exam, but who may yet be personally capable of

performing adequately the duties of a sheriff in this state” because “[i]t is

reasonable to conclude * * * that an education will facilitate the performance of

those duties.” Similarly, it is reasonable to conclude here that the requirements of

R.C. 311.01(B)(9) facilitate the performance of the duties of the chief law

enforcement officers of Ohio’s counties.

{¶ 29} Based on the foregoing, Watson has failed to overcome the strong

presumption of constitutionality accorded R.C. 311.01(B)(9). See Cleveland v.

Trzebuckowski (1999), 85 Ohio St.3d 524, 528, 709 N.E.2d 1148, 1152. The state’s

important interests in ensuring that its chief law enforcement officers are qualified

justify the reasonable, nondiscriminatory restrictions imposed by R.C.

311.01(B)(9), which imposes only a very limited burden on voters’ and candidates’

constitutional rights.

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{¶ 30} Therefore, Watson is not entitled to the requested extraordinary

relief in mandamus. Respondents board and its members did not abuse their

discretion or clearly disregard applicable law in denying certification of Watson’s

candidacy. Accordingly, we deny the writ.

Writ denied.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and LUNDBERG

STRATTON, JJ., concur.

PFEIFER, J., dissents.

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PFEIFER, J., dissenting.

{¶ 31} I would find R.C. 311.01 unconstitutional for the reasons stated in

my dissenting opinion in State ex rel. Wolfe v. Delaware Cty. Bd. of Elections

(2000), 88 Ohio St.3d 182, 724 N.E.2d 771.

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